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GAZETTE
APRIL. 1984
residential property, together with furniture and contents
nowadays, can absorb such a substantial amount of the
threshold that the balance of the tax free threshold does
not permit of satisfactory provision for a surviving
spouse. Indeed, in some cases, the hardship can be such
that the surviving spouse may have to sell 'the family
home' and make other arrangements that should not be
necessary and would not have occurred under the
statutory provisions and the values prevailing when the
original legislation was introduced. •
The Uncertain and Crooked Cord of Discretion
— (continued from p. 113)
far more disagreeable to substitute the rule of caprice for
that of law. The most famous warning in the history of
our fiscal law is constituted by
The Case of Ship Money
(1637) 3 St. Tr. 825. It could be strongly argued that it was
contrary to fiscal equity that the financial burden of
providing warships (or their money equivalent) for the
defence of the whole realm should fall exclusively on the
inhabitants of maritime towns and districts, to the
exoneration of inland citizens: yet such, it seems, was the
law of the land; and the Judges who appear to have
stretched the law have not escaped the censure of
history": 94 per Lord Simon of Glaisdale.
In the light of these authorities the
Furniss
-v-
Dawson
approach is highly suspect. The examples referred to
earlier in this article indicate the uncertainty and injustice
which the approach will create in a branch of the law
which even now is not conspicuous for either clarity or
abstract justice. The intervention of judge-made law for
which there appears to be no constitutional authority will
not improve the position.
The Department of Finance is unique among the
Departments of State in having annual access to the
Legislature, and it has not been slow in requesting anti-
avoidance legislation of which the new ss.20, 21 and 22
Finance (Miscellaneous Provisions) Act 1968 as
substituted by s.29(3) Finance Act 1981 are but one
example. Such legislation, if complex, is at least precise,
certainly more so than judge-made law where judicial
dicta are merely obiter if not related to the particular
matter in issue. Legislation seeking to tax A on a profit
accruing to B normally incorporates statutory machinery
enabling A to recover from B the tax which he (A) has
been required to pay (see for example s.21(l) Finance
(Miscellaneous Provisions) Act 1968, as substituted). The
Furniss
-v-
Dawson
approach, on the other hand, as has
already been remarked, is significantly lacking in this
respect.
Contrary to what Lord Scarman suggests in
Furniss
-v-
Dawson
taxation is not an area which lends itself readily to
judge-made law. In a branch of the law which is purely
statutory with no common law infrastructure the role of
the judiciary, as Lord Donovan pointed out in
Mangin
-v-
CIR
[1971] 1 All ER 179,185, is to interpret rather than to
innovate. To do otherwise is, in the words of Lord Simon
of Glaisdale in
Ransom
-v-
Higgs
50 TC 1,94, to substitute
the rule of caprice for that of law, a retrograde step which
it is to be hoped the Irish judiciary will be slow to take.
Patrick J. McEllin
An Appreciation
The saying "A lawyer and a gentleman" has been
loosely applied and originated long before Paddy's time,
but in his professional and personal life it can truly be
applied to him. In the forty years which he practised in his
home town of Claremorris he earned himself the
reputation of loyalty, deep understanding of, and
consideration for, his clients and their welfare, whose
interests he tirelessly and selflessly worked for, and for
whom he made numerous sacrifices, earning for himself
the title of "lay confessor". We shall never know the
hours of leisure time he foresook, just to attend a distant
District Court.
When Paddy died on the morning of the 26th April last
it may have been a blessing as his last illness may well have
interfered with his ability to communicate, an ability
which had been one of his great loves. He would have
disliked to be dependent on others.
Paddy had his priorities in order:
- His God and his Church which he served with great
piety and devotion without seeking public accolade
tor such virtues, and in truly making "every man his
neighbour".
- His wife, Eileen and his children, to whom he was
devoted and for whom he made many personal
sacrifices.
- His profession.
Nowhere in Paddy's long career is there a known
instance of an exaggerated statement or a mis-stated fact.
Any words that came from him had the unmistakable ring
of authenticity. Because of this reputation and despite his
efforts at self-deprecation, he was chosen annually,
unanimously, by his professional colleagues in Connacht
to represent them on the Council of the Law Society, on
which he served so diligently and so well.
In the practice of the law, although his accomplish-
ments are legend, his strong suit was the common law,
particularly negligence cases.
Paddy was a private, quiet man, little given to self-
promotion, but within his circle of friends and associates
he gained acceptance as a fount of wisdom a mantle he
tried to discard with a superb sense of humour.
With Paddy's death the legal profession has lost one of
the most kind, courteous, considerate and certainly one of
the most courageous people we have ever had the pleasure
to know.
" Farewell dear friend
That smile, that harmless mirth
No more shall gladden
Our domestic hearth."
Sit Tibi Terra Levis.
W.B.A.
116